Test for faith-based programs

Can taxpayers sue executive branch?

February 28, 2007|By Karoun Demirjian, Washington Bureau.

WASHINGTON — Since his earliest days in office, President Bush's faith-based initiative has been close to his heart, and he has spoken passionately of the importance of empowering religious-oriented groups to do good in their communities.

The administration has provided millions of dollars to religious social service organizations since 2001, establishing faith-based centers in the White House and Cabinet agencies. But the program, established by executive order, has always been a magnet for criticism--and legal challenges -- from those concerned that these offices erode the constitutional separation of church and state.

After six years of debate, the Supreme Court is scheduled to hear oral arguments Wednesday in a case that poses the most blunt challenge yet to the activities of the administration's faith-based offices.

The case, Hein vs. Freedom From Religion Foundation, hinges on whether a group of taxpayers wishing to sue the executive branch for using tax dollars to fund faith-based initiatives has the standing, or legal right, to have its day in court.

This is arguably an indirect and technical conduit to addressing an intensely political issue. But if the Supreme Court rules broadly, it could significantly affect taxpayers' ability to challenge programs they feel impermissibly breach the separation of church and state.

Direct assaults failed

The Wisconsin-based Freedom From Religion Foundation, an organization of non-religious "freethinkers," first brought its challenge against Jim Towey, then-director of the White House Office of Faith-Based and Community Initiatives, in federal court in 2004.

Foundation co-presidents Dan Barker and Annie Laurie Gaylor, along with founder Anne Nicol Gaylor, brought the suit as taxpayers. They complained that the White House was using tax dollars to host conferences that gave religious groups preferential treatment, training and funding, violating the 1st Amendment, which reads in part, "Congress shall make no law respecting an establishment of religion."

The group's leaders acknowledge they are challenging use of taxpayer dollars because more direct assaults on the faith-based program failed. It has been difficult to find litigants with standing to bring lawsuits.

"There's no way to challenge the faith-based initiatives, so you have to challenge the funding streams," Annie Laurie Gaylor said.

A federal judge initially threw out the suit, saying plaintiffs lacked standing. They appealed to the Chicago-based 7th U.S. Circuit Court of Appeals, which overturned the lower court's decision in 2006.

Now, after a White House appeal, the Supreme Court will consider the same question.

"This is about getting in the door," said Sarah Gordon, a law professor at the University of Pennsylvania. "It isn't your day in court. It's about whether you have enough going on to get your day in court."

U.S. courts are generally stringent about the standing requirement. A plaintiff must prove he or she suffered personally from a law or action before being allowed to bring a case.

On most subjects, that keeps taxpayers from challenging the government over how taxes are used. But for the past 60 years, the Supreme Court has recognized an exception in Establishment Clause cases, where financially favoring one religion arguably could harm adherents of others that were passed over.

In a 1947 case, the Supreme Court unanimously interpreted the Establishment Clause to mean that "no tax in any amount, large or small, can be levied to support any religious activities or institutions." In 1968, the court got more specific, ruling that taxpayers could sue to prevent appropriation of funds for unconstitutional government support of religion.

Yet these and other cases dealt only with programs established by Congress or funded by a specific congressional appropriation. The case of a program established by executive order, with taxpayer dollars appropriated to the executive branch to use at its discretion--which is how Bush has funded his initiative--has not been considered.

To some, that distinction is splitting hairs.

`It's absurd'

"Most of us thought the standard was already established," said Barry Lynn, executive director of Americans United for Separation of Church and State. "It's absurd to throw in a distinction and not allow taxpayers to challenge illegal spending if it's done at the discretion of a government official."

Judge Richard Posner, who wrote the appeals court decision, also believed the distinction carried no legal weight. "Since the program itself is challenged as unconstitutional, the fact that it was funded out of general rather than earmarked appropriations--that it was an executive rather than a congressional program -- does not deprive taxpayers of standing to challenge it," Posner wrote.

But supporters of the faith-based initiatives argue that ignoring the distinction could yield a flood of frivolous lawsuits, because virtually anyone could sue to block the program.

"These cases have been very disruptive to these faith-based initiatives, and real people who have real problems are not getting government help because of their lawsuits," said Jordan Lorence, senior counsel for the conservative Alliance Defense Fund, who wrote an amicus brief in support of the government in this case.

The degree to which the case will change the face of separation of church and state, however, depends on the breadth of the court's decision. If the justices rule that taxpayers cannot sue in Establishment Clause cases if the president is spending money without congressional input, that would greatly strengthen the legal underpinning of Bush's faith-based initiative.